Thread: Beware of Indirect Immigration Policy Making

Beware of Indirect Immigration Policy Making
By David North
August 2010
Backgrounders and Reports

Download a pdf of this Backgrounder
http://www.cis.org/articles/2010/north-indirect.pdf

David North is a CIS Fellow.

Most of the dialogue on national immigration policy, understandably, is focused on direct federal government policy making; that is, when Congress passes a law or votes appropriations, when the executive makes policies within the law, and when the judiciary interprets the law.

But there is another aspect of national policy making in which the U.S. government hands off migration decision making to some other entity, such as to a huge international organization like the World Trade Organization (WTO), or to a tiny government, such as that of American Samoa. These arrangements should concern all low-migration advocates, particularly since the mass migration people are proposing commissions to help make immigration policy.

My strong sense is that these indirect pieces of policy making nearly always favor the open-borders types; typically the other side is better placed and better able to manipulate these situations than those of us who dislike loose immigration policies.

Every time one of these policy hand-offs happens, at least to date, it has opened our doors a little (or a lot) more. Further, it is usually harder for the American government to correct these indirect decisions than it is to modify its own direct decisions.

There are four types of situations in which indirect policy making takes place. They are, in descending order of importance: 1) treaty arrangements, often free-trade agreements; 2) referrals to quasi-independent, nationwide American institutions; 3) referrals to other levels of American government, notably our island territories; and 4) subsequent decisions by other nations that alter the impact of existing congressional legislation. See Table 1.



Perhaps I am missing something, but I have not seen a discussion of these four sets of arrangements covered in a single document. Further, while there has been a great deal of debate about the influence of treaty arrangements on U.S. immigration policy, there has been little on the other three matters. But the impact all of all four runs in exactly the same direction.

Incidentally, for these purposes I do not regard even the most controversial decisions of the executive or the judiciary as indirect decisions. I disagree with the Obama Administration’s policy to slow down or stop deportations of illegal aliens without criminal records, for example, but I do not regard it as an indirect part of the process.

Some of these indirect arrangements are more worrisome than others. The worst are those, in which, because of existing treaties, Congress cannot act. Decisions are made in settings in which the United States is, at best, a litigant, and certainly not a decision maker.

Next most troublesome are those situations in which Congress is faced with a situation where it is forced to act on a detailed proposal created by external forces other than its own committee structures. Within this framework, in one scenario, Congress must vote one way or the other; in another scenario, if it does not vote, the proposed change happens anyway.

Then there are situations, such as the possibility of denying immigration powers to American Samoa, where Congress may act, but often does not. It did act regarding another territory, after years of foot dragging, finally taking immigration powers away from the scandal-plagued, sweatshop-tolerating local government of the Mariana Islands.

The least troublesome are those arrangements where the independent commission, either in existence or being proposed, makes recommendations to Congress, and it must act before anything happens. In these instances, while the commission in question may well tilt to looser borders, as they usually do, the Congress must make a decision. And that decision could well be to ignore the proposed change.

Let’s look at America’s second-hand immigration decision making in a little more detail. In the sections that follow I devote less detailed coverage to the arrangements that have been heavily documented (such as free trade treaties and the Marianas controversy) and more to those which have either attracted less attention or which are still in the proposal stage.

Treaties

Perhaps the most troublesome of these arrangements are the treaties negotiated by the Office of the United States Trade Representative (OTR); the office itself is within the White House and, by its nature, is very interested in making trade-expanding deals with other nations and has little institutional focus on immigration.

A glance at the current Congressional Directory1 listing for OTR shows 28 job titles, often covering more than one concept, but the word “immigrationâ€

[quote]Our office’s one employee in Pago Pago was furious with me: “you are interfering in a strictly Samoan affair; you had no right to do that.â€

[quote]Virgin Islands and Guam. What are now the U.S. Virgin Islands (USVI) were purchased from Denmark in 1917. That was during World War I, and one of the reasons was a worry that Denmark, a not-powerful neutral in that war, might be pressured by Germany to turn over the islands, which then might be used as bases for Germany’s submarines.

At first, as with Samoa, the government of these islands was in the hands of the Navy, and later that of U.S.-appointed civilian governors working with the Department of Interior. One of the tasks of those governments was supervising immigration; prior to World War II there was a great deal of unsupervised migration back and forth between the British and the American Virgin Islands, something that could be done easily with relatively small boats. The Immigration and Nationality Act was formally, but ineffectively, extended to the USVI in 1938 and then, more effectively, on March 1, 1941.45

During World War II there was much naval base construction, and in the decades that followed a boom in tourism-related employment. While not actually handing off immigration decision-making to local authorities, the federal government modified the nationwide H-2 program for nonimmigrant workers in such a way that permitted the flooding of island labor markets by workers from relatively nearby British, French, and Dutch island colonies. Soon these workers, few of whom had permanent visas, constituted half the islands’ labor force. The House Committee report, cited earlier, reported that the “Down Islandersâ€